01A42951_r
07-20-2004
Douglas G. Dunlap, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Douglas G. Dunlap v. Department of the Interior
01A42951
July 20, 2004
.
Douglas G. Dunlap,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A42951
Agency No. BIA-03-018
DECISION
Complainant filed an EEO complaint in which he claimed that the agency
discriminated against him on the basis of his sex (male) when on December
11, 2002, he was not selected for the position of Highway Engineer or
Civil Engineer, GS-0810-07/09/11.
The record reveals that complainant was employed by the Confederates
Tribes of Warm Springs, Oregon as a Supervisory Forest Engineer since
1989. Complainant applied to the agency for the relevant Highway Engineer
position and he was subsequently notified that he had not been selected.
The EEO complaint was accepted for investigation. Subsequent to the
completion of the agency investigation, complainant requested that
the agency issue a final action. The agency issued a final action
dated February 23, 2004, finding that no discrimination occurred.
The agency determined that complainant set forth a prima facie
case of sex discrimination. The agency next determined that it
articulated legitimate, nondiscriminatory reasons for its nonselection
of complainant. The agency stated that the selectee's application was
clearer and better presented than complainant's application. According to
the agency, positive results were received from the selectee's supervisors
and others who worked with her consulting firm. The agency determined
that complainant failed to show by a preponderance of the evidence that
he was discriminated against when he was not selected.
On appeal, complainant contends that the selecting official told him that
he may have to hire a woman in order to keep her husband as an employee.
In response, the agency asserts that although complainant was rated as
qualified, the selectee was considered more qualified for the position.
The agency asserts that management can choose between qualified candidates
and that complainant failed to establish that his qualifications were
clearly superior to those of the selectee.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
For complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of sex discrimination. Next, we shall
consider whether the agency articulated a legitimate, nondiscriminatory
reason for its action. In this case, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for its action.
Consequently, we will dispense with an examination of whether complainant
established a prima facie case with respect to the above cited issue
and review below, the reasons articulated by the agency for its action
as well as complainant's effort to prove pretext.
The selecting official stated that the selectee's job application
was clearer and better presented than complainant's job application.
The selecting official noted that he received favorable reports from
the selectee's references. According to the selecting official, the
selectee had a working knowledge of the engineering software that the
agency was using. The selecting official further noted that the position
was capable of being handled by any grade level from GS-7 to GS-11.
The selecting official stated that complainant was listed on the
certificate of eligibles at only the GS-11 grade level. According to
the selecting official, the selectee was placed on the certificate of
eligibles at both the GS-11 and GS-9 grade levels and she was chosen at
the GS-9 grade level. The selecting official stated that he considered
the fact that it would be more cost effective to hire the selectee
than complainant. We find that the agency has articulated legitimate,
nondiscriminatory reasons for its selection decision.
We find that complainant failed to refute the agency's position that
he was not chosen because the selectee's job application was clearer
and better presented, the selectee received favorable references, and
hiring the selectee at the GS-9 grade level was more cost effective.
The selecting official stated that he did not remember telling complainant
that he may have to hire the selectee in order to retain her husband.
We find that even if it is true that the selecting official told
complainant that he may have to hire the selectee in order to retain her
husband, this does not establish that there was an intent to discriminate
against complainant on the basis of his sex. Complainant also claimed
that he should have been chosen due to veteran's preference. However,
the selecting official stated that he was informed by the Personnel Office
that the veteran's preference needed to be followed in the grade level
of the selection; since the selectee was selected at the GS-9 level and
complainant was a candidate at the GS-11 level, his veteran's preference
was not a factor that needed to be considered. Complainant has not shown
that his qualifications for the position at issue were so superior to
those of the selectee as to warrant a finding that the agency's stated
reasons are pretextual. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). We find that complainant has not shown, by a preponderance
of the evidence, that the agency's stated reasons for his nonselection
were pretext intended to mask discriminatory intent.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's decision,
because a preponderance of the record evidence does not establish that
sex discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 20, 2004
__________________
Date